*Local Rule 47.5 provides: "The publication of opinions that

have no precedential value and merely decide particular cases on

the basis of well-settled principles of law imposes needless

expense on the public and burdens on the legal profession." 

Pursuant to that Rule, the Court has determined that this opinion

should not be published.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 95-30504

Summary Calendar

__________________

IN THE MATTER OF: JAMES G. BLANCHARD and

 SYLVIA K. BLANCHARD,

 Debtors.

James G. Blanchard and Sylvia K. Blanchard,

Appellants,

versus

Mortgage Funding Corp./PFI; PPF Financial Corp.,

Appellees.

______________________________________________

Appeal from the United States District Court for the

Eastern District of Louisiana

(CA-94-3495-S)

______________________________________________

(October 19, 1995)

Before KING, SMITH and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge*:

Appellants James and Sylvia Blanchard filed an adversary

complaint in bankruptcy court against appellees Mortgage Funding
1 Appellants erroneously referred to PPF, the owner of the

judgment against them, as PFI. PPF, an affiliate of Mortgage

Funding Corporation, filed an answer, indicating that it was

answering the suit "even though it had not been made a party

[because] plaintiffs may have meant to include PPF Financial

Corporation." The district court concluded that PPF became a

party to the suit by filing an answer. PPF does not appeal the

district court's finding and, thus, it is not an issue before us

on appeal.

2

Corporation and PPF1, seeking to cancel a consent judgment rendered

against the Blanchards' property in New Orleans. The bankruptcy

court denied relief, which the district court affirmed. Finding no

error in either the bankruptcy court's or the district court's

judgment, we affirm.

I. The Controversy

In October 1991, the Blanchards granted American Savings and

Loan consent judgments in four mortgage foreclosure proceedings

against various properties owned by the Blanchards in New Orleans,

including the Blanchards' property on Race Street (the "Race Street

property"). The judgment at issue in the instant cause (the "Race

Street judgment") subsequently was assigned to PPF.

The Blanchards eventually sold the Race Street property. At

the act of sale, the Blanchards were unrepresented by counsel.

John Marsiglia, an attorney for Mortgage Funding and PPF, acted as

notary on the sale. The Blanchards contend that Marsiglia and John

Guice, vice-president of PPF, each represented to them that PPF

would accept the sale proceeds from the Race Street property as

full satisfaction, thereby cancelling the Race Street judgment.

Several months later, the Blanchards were in the process of
3

selling their Third Street property, which was also subject to a

consent judgment. They discovered that Mortgage Funding and PPF

had only partially canceled the Race Street judgment and, thus, the

judgment acted as a judicial mortgage against the Blanchards' other

properties. 

The Blanchards filed an adversary complaint in the Bankruptcy

Court for the Eastern District of Louisiana against Mortgage

Funding and PPF for injunctive relief and to cancel the Race Street

judgment. On September 27, 1994, the bankruptcy court denied the

Blanchards' requests. The Blanchards appealed to the district

court, which affirmed the bankruptcy court's judgment. The

Blanchards appeal, arguing that the district court erred by

improperly applying the uncontradicted testimony rule and the

adverse witness rule. 

II. DISCUSSION

In the hearing before the bankruptcy court, the Blanchards

testified that they entered into an oral agreement with Guice to

cancel the Race Street judgment in its entirety. The Blanchards

also asserted that Marsiglia had assured them that the judgment

would be cancelled in full. Marsiglia, however, denied that he had

ever informed the Blanchards that they would receive a full release

from the Race Street judgment. Marsiglia further testified that,

although he was not present during any of the conversations between

the Blanchards and Guice, he understood the agreement to provide

only a partial release from the Race Street judgment. Guice did
4

not appear at the hearing. The district court concluded that the

bankruptcy court had "viewed and judged the credibility of the

witnesses . . . and obviously gave more weight to Marsiglia's

testimony," and that this finding was not clearly erroneous. 

A bankruptcy court's findings of fact "shall not be set aside

unless clearly erroneous, and due regard shall be given to the

opportunity of the bankruptcy court to judge the credibility of the

witnesses." Bankr. R. 8013. A finding of fact is clearly

erroneous when the reviewing court on the entire record is left

with the definite and firm conviction that a mistake has been

committed. In re Missionary Baptist Found. of Am., 818 F.2d 1135,

1142 (5th Cir. 1987). Strict application of the clearly erroneous

rule is particularly warranted when the district court has affirmed

the bankruptcy court's judgment. Id. 

The Blanchards contend that the district court erred in

finding that no agreement existed between the Blanchards and Guice

to fully release the Race Street judgment because the bankruptcy

court should have given conclusive weight to their uncontradicted

testimony about Guice's statements. The Blanchards base their

argument on the fact that Guice did not testify at trial to rebut

their claims of a full release. The district court, however,

explicitly concluded that Marsiglia offered contradictory testimony

on the issue of full release.

A trier of fact has no right to refuse to accept testimony

when it is unimpeached, uncontradicted, and its credibility has not

been questioned. United States v. Johnson, 208 F.2d 729, 730 (5th

Cir. 1953); see National Labor Relations Bd. v. Ray Smith Transp.
2 The record provides ample evidence to support the bankruptcy

court's determination that the Blanchards had failed to carry the

burden of proof. In addition to Marsiglia's testimony that

denied the existence of an agreement to a full release, we note

that James Blanchard was unable to give specific dates on which

Guice had allegedly agreed to a full release, stating that he

"wouldn't insult this court by trying to give you a date. He

told it to me repeatedly." Although the Blanchards testified

that Guice had promised a full release, they admitted that they

had no written letters or agreements that indicated PPF's

intention to grant a full release of the Race Street judgment. 

The bankruptcy court's decision not to give great weight to the

Blanchards' self-serving testimony was within its discretion. 

See In re Coston, 991 F.2d at 262. 

5

Co., 193 F.2d 142, 146 (5th Cir. 1951). In the instant cause, the

bankruptcy court concluded that the Blanchards had not "carried the

burden of proving that this judgment should be cancelled entirely

or that there was any agreement on the part of the holder of the

mortgage . . . to cancel the entire debt." (Emphasis added.) It is

clear that the bankruptcy court questioned the credibility of the

Blanchards' testimony that an agreement existed. As a reviewing

court, we are required to give due deference to the bankruptcy

court's opportunity to judge the credibility of the witnesses. In

re Coston, 991 F.2d 257, 262 (5th Cir. 1993).2 

The district court did not err in concluding that Marsiglia's

testimony of his understanding of the agreement between Guice and

the Blanchards as encompassing only a partial release contradicted

the Blanchards' testimony. The Blanchards' testimony was

contradicted and its credibility was questioned. The bankruptcy

court, therefore, was not required to accept the testimony as

dispositive on the issue of release. See Johnson, 208 F.2d at 730

(concluding that a district court cannot reject testimony that is

uncontradicted and unimpeached). 
3 The district court also concluded that because Guice's

testimony would have been largely cumulative of Marsiglia's, the

bankruptcy court did not abuse its discretion in failing to draw

an adverse inference. We express no opinion on this conclusion.

6

The district court correctly reviewed the bankruptcy court's

finding under the clearly erroneous standard. Because the

bankruptcy court's "account of the evidence is plausible in light

of the record viewed in its entirety," we will not reverse it based

on the Blanchards' assertion that their testimony on full release

was uncontroverted. Anderson v. City of Bessemer City, N.C., 470

U.S. 564, 574, 105 S. Ct. 1504, 1511, 84 L. Ed.2d 518 (1985).

The Blanchards also contend that the district court erred in

its application of the "adverse witness" rule, under which a

party's failure to call a witness within its control who could

testify to material facts permits a court to draw an inference

against that party. In re Evangeline Ref. Co., 890 F.2d 1312, 1321

(5th Cir. 1989). The rule is discretionary and is subject to an

abuse of discretion standard. Id. The adverse witness rule only

applies, however, where a party "has it peculiarly within his power

to produce witnesses whose testimony would elucidate the

transaction [at issue]." Herbert v. Wal-Mart Stores, Inc., 911

F.2d 1044, 1046 (5th Cir. 1990) (quoting Graves v. United States,

150 U.S. 118, 121, 14 S. Ct. 40, 41, 37 L. Ed. 1021 (1893)). 

The district court concluded that the Blanchards had failed to

show that it was peculiarly within PPF's power to produce Guice.3

See Herbert, 911 F.2d at 1049. The Blanchards argue on appeal to

this Court that Guice was peculiarly within PPF's power to produce

because they could not subpoena him to testify as he lived and
7

worked in Hattiesburg, Mississippi, more than one-hundred miles

from the bankruptcy court in New Orleans. See Fed. R. Civ. P.

45(b)(2) (stating that a subpoena may be issued at any place within

100 miles of the place of the hearing or trial); Bankr. R. 9016

(making Rule 45 applicable to all bankruptcy cases). The

Blanchards, however, did not make this argument before either the

bankruptcy court or the district court. 

Indeed, the Blanchards neither requested that the bankruptcy

court apply the adverse witness rule nor made the requisite showing

that Guice was peculiarly within PPF's control. It is only before

this Court that the Blanchards assert that because Guice lives and

works more than 100 miles from the place of the hearing, he was not

subject to the subpoena power of the court, and is thus peculiarly

within PPF's control. This Court is ill suited to make an initial

factual determination with respect to these issues as urged by the

Blanchards. The bankruptcy court's unique role as fact finder

places it in the best position to determine whether Guice was

peculiarly within PPF's control. See Richmond Leasing Co. v.

Capital Bank, N.A., 762 F.2d 1303, 1308 (5th Cir. 1985) (holding

that the bankruptcy court's role as fact finder entitles it to

deference from reviewing courts). 

In light of the Blanchards' failure to request that the

bankruptcy court apply the adverse witness rule and their failure

to present evidence that Guice was peculiarly within PPF's control,

we conclude that the bankruptcy court did not abuse its discretion

by not applying the rule. See In re Evangeline Ref. Co., 890 F.2d

at 1321 (determining that the rule is subject to an abuse of
8

discretion standard). The district court did not err in not

applying the adverse witness rule in its review of the bankruptcy

court's ruling. Finding no error in the bankruptcy court

proceedings or in the district court's review of the same, we

affirm the district court's judgment, which affirmed the bankruptcy

court's decision to deny relief to the Blanchards.

AFFIRMED.